PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY. They govern the relationship
between you and iSmart Mobile LLC d/b/a Big Sky Mobile and explain our respective
legal rights concerning all aspects of our relationship, including without limitation:
• Rates and charges
• Availability of the service and features
• Replenishment and expiration of balances
• Privacy and confidentiality
• Your rights related to Customer Proprietary Network Information
• Modifications to the agreement
• Limitations of liability and warranty
• Resolution of past or future disputes by mandatory binding arbitration instead
of court trials and class actions.
IF YOU USE THE SERVICE OR THE WIRELESS DEVICE, YOU CONSENT TO THE TERMS AND
CONDITIONS SET FORTH IN THIS AGREEMENT. IF YOU DO NOT AGREE WITH THESE TERMS
AND CONDITIONS DO NOT USE THE SERVICE OR PHONE AND NOTIFY US IMMEDIATELY TO
CANCEL THE SERVICE.
This is an agreement ("Agreement") for wireless radio telecommunications
services and related services and/or features ("Service") between
you and the entity licensed by the Federal Communications Commission to provide
Service in the area associated with your assigned telephone, data and/or messaging
number(s) ("Number") that is doing business as Big Sky Mobile, ("us"
or "we"). The term "Device" means wireless receiving and
transmitting equipment that we have authorized to be programmed with the Number.
a. Availability/Interruption. Service is available to your Device when it is
within the operating range of the GSM network, and may be available outside
of that area in other participating carrier service areas. Service is subject
to transmission limitation or interruption caused by weather, terrain, obstructions
such as trees or buildings, and other conditions. Service may be limited in
some areas where coverage is not available or may be temporarily limited or
interrupted due to network capacity limitations and network repairs or modifications
or to combat potential fraud. GSM wireless features require a compatible GSM
850/1900 dual, tri, or quad band phone, are only available in the GSM features
area, and may require local telephone company support and message sender access
to computer and modem. All features or Service offerings may not be available,
depending on location.
b. Use of Service/Device/Number. Reproduction, retransmission, dissemination
or resale of Service is prohibited without prior written contractual arrangements
from iSmart Mobile, LLC and any required regulatory approvals. When using equipment
not provided by us, you are responsible for ensuring that it is compatible with
our Service and meets federal standards. You are responsible for the purchase
and maintenance of any additional hardware, software and/or Internet access
from your PC required to use the Service. You consent to receiving advertising,
alerts and other broadcast messages from iSmart Mobile, LLC or our authorized
agents. You have no ownership rights to the Number, any IP address, any e-mail
address or any other identifier provisioned by us, our agents or the manufacturer
of your Device to be used with the Service, and you agree we may change any
such Number, IP address, e-mail address or any other identifier at any time
with or without prior notice to you. By using Service, you agree to abide by
the terms and conditions of any applicable software license.
c. Unauthorized Usage. You agree not to use the Device or Service for any unlawful,
unauthorized or abusive purpose or in any way that damages our property or others'
property, or interferes with, harms or disrupts our system or other operators'
systems or other users. You will comply with all applicable laws while using
the Service and you will not transmit any communication or data that would violate
any laws, court order, or regulation, or would likely be offensive to the recipient.
You are responsible for all content you transmit using the Service. You may
not install any amplifiers, enhancers, repeaters or other devices that modify,
disrupt or interfere in any way with the radio frequency licensed to us to provide
Service. If your Device, user name or password is stolen or Service is fraudulently
used, you must immediately notify us and provide us with such documentation
and information as we may request (including affidavits and police reports).
Until you notify us, you will remain responsible for all charges. We have
the right to interrupt or restrict Service to your Number, without notice to
you, if we suspect fraudulent, illegal, or abusive activity. You agree to cooperate
with us in any fraud investigation and to use any fraud prevention measures
we prescribe. Failure to provide reasonable cooperation may result in your liability
for all fraudulent usage.
d. Unlimited Voice Services: Unlimited voice services are provided solely for
live dialog between two individuals. Unlimited voice services may not be used
for conference calling, call forwarding, monitoring services, data transmissions,
transmission of broadcasts, transmission of recorded material, or other connections
that do not consist of uninterrupted live dialog between two individuals. If
iSmart Mobile, LLC finds that you are using an unlimited voice service offering
for anything other than live dialog between two individuals, iSmart Mobile,
LLC may at its option terminate your service or change your plan to one with
no unlimited usage components. iSmart Mobile, LLC will provide notice that it
intends to take any of the above actions, and you may terminate the Agreement.
e. Release of Information. You consent to our release of information about you
when we believe release is appropriate to comply with the law (e.g. a lawful
subpoena, E911 information); to enforce or apply our customer agreements; to
initiate, render, bill and collect for Services; to protect our rights or property;
to protect users of those Services and other carriers from fraudulent, abusive,
or unlawful use of, or subscription to, such Services; or if we reasonably believe
that an emergency involving danger of death or serious physical injury to any
person requires timely disclosure of communications or justifies disclosure
posted on our website at www.bigskymobile.com.
f. Your Rights to End This Agreement. You may terminate your Service at any
time by notifying us of your intention to terminate Service. There is no penalty
or termination fee; however, the balance remaining in your account is forfeited
upon termination of Service.
a. Generally, You are responsible for paying all charges, including but not
limited to: airtime, access, features, voice mail access, data usage, text messages
(both inbound and outbound), downloadable content, alerts, roaming, long distance,
directory and operator assistance charges, the price of Devices and accessories,
charges for other goods and services and shipping/handling fees. Applicable
international wireless long distance charges will be charged for international
calls placed from your wireless phone. A long distance provider chosen by iSmart
Mobile, LLC will provide your long distance. For all calls, the length of the
call will be measured during the time that you are connected to our system,
which is approximately from the time you press "Send" or other key
to begin a call until approximately the time you press "End," or other
key to terminate the call. Airtime usage on each call is deducted in full minute
increments, with partial minutes of use rounded up to the next full minute.
For calls placed in the United States, you will not be charged for busy or unconnected
calls if you press "End" or "No" within 30 seconds. Unanswered
calls lasting 30 seconds or more will be charged standard airtime and rounded
up to the nearest minute. Call waiting, 3-way calling, call forwarding, and
voicemail will incur applicable airtime or roaming and wireless long distance
charges. You will be charged for any check or electronic bank draft returned
for non-payment. Please note you may be charged a higher rate for calls made
off-network. Please refer to your rate card for details.
b. Use of Service/Rates. Your Service rates and other charges and conditions
for each Number or Phone are described in the "Literature" (the user
guide and other printed materials either provided by us directly when submitting
your Device for use with the Service or in the packaging of the Device you purchased
to be used with the Service) you received, or at www.bigskymobile.com, each
of which is a part of this Agreement. You can place domestic and international
calls from the U.S. to certain designated international locations. International
rates vary and are subject to change. Call Customer Service (611) or visit www.bigskymobile.com
for international rates and available countries. You must have a positive pre-paid
account balance to place international calls. You cannot use the Service to
place calls to 811, 900, 976 or 1010 numbers; or to place operator-assisted
calls such as third-party-billed, and collect calls. Rates for calls to directory
assistance are $1.79 per call plus airtime or roaming charges. You will be billed
at domestic airtime or roaming rates (please refer to rate chart) for 800, 866,
877, 888, and other "toll free" calls. You are responsible for all
taxes and surcharges associated with your use of the Service. Fees or taxes
will be debited monthly from your account (“Account”) balance as
allowed by law including, but not limited to, State and Federal Universal Service
Charges and E911 fees. Special dialing patterns may be required when making
roaming calls. Some locations require a credit card to complete a call; these
rates will be higher. When in these areas, you will not be able to receive calls.
Wireless service is not available for purchase or use in all areas. You are
responsible for all data usage sent through our network and associated with
the Device, regardless of whether the Device actually receives the information.
c. Billing Period. A “Billing Period” is defined as the length of
time (no more than thirty-one (31) days for the purposes of definition) for
which you have paid for the Service and may also be referred to as a “Month.”
Your first Billing Period begins on the day you sign up for, or activate, Service
with Big Sky Mobile. Each subsequent Billing Period will begin on the same date
of the following calendar month as the previous Billing Period. Therefore, Billing
Periods may vary in length from twenty-eight (28) to thirty-one (31) days. By
activating service you agree to this and cannot be reimbursed any amount for
any Billing Period that is less than thirty-one (31) days. Your Billing Period
may be changed at any time without prior written notice from iSmart Mobile,
LLC. Your Billing Period may be changed upon your request, at our sole discretion.
d. Payments. Monthly payments to your Account will automatically be made from
your designated credit card, or debit card when applicable. The amount of your
monthly payment may be increased up to 10% due to possible changes in taxes,
surcharges and fees without prior notice from, or need for any further notice
from, iSmart Mobile, LLC. Payments to your Account are not redeemable for cash
or credit and are not transferable. If payment is not received by the start
of your next Billing Period, your service will be suspended. If payment is not
received within one (1) Month of its original due date a re-instatement fee
will be assessed. If payment is not received within two (2) Months of its original
due date you will be considered in default as outlined in paragraph 2, f below
and your service may be terminated, and the Number assigned to you may be forfeited.
e. Account Balance. Your account must have a positive pre-paid balance to place
international calls. All charges incurred will be deducted automatically from
your Account if it carries a positive balance. Otherwise, incurred charges will
be added to your account and you will be responsible for payment in accordance
with paragraph 2, d above. Any amounts on your Account are not transferable
or refundable. If, on the 1st day of your billing period, your Account carries
a positive balance after all incurred charges from the previous billing period
have been deducted, the remaining balance will be debited against the current
f. Default/Termination. If you breach any representation to us or (fail to perform
any of the promises you made in the Agreement) you will be in default and we
may, without notice to you, suspend Service and/or terminate this Agreement,
in addition to all other remedies available to us.
g. Account Information. Any person able to provide your Number and account password
is authorized by you to make changes to your account. You consent to disclosure
of any information about you to any person as permitted by law if any Device
programmed with your Number calls an emergency service number such as 911 or,
if we reasonably believe that an emergency involving danger of death or serious
physical injury to any person requires timely disclosure of communications or
justifies disclosure of records.
h. CPNI Consent. Under federal law, you have a right, and we have a duty, to
protect the confidentiality of information about the amount, type, and destination
of your wireless service usage (CPNI). You consent to us sharing your CPNI with
iSmart Mobile, LLC, its affiliates and its contractors, to develop or bring
to your attention any products and services. This consent survives the termination
of your Service and is valid until you remove it. To remove this consent at
any time, notify us in writing at iSmart Mobile, LLC Attn: CPNI, 23500 Mercantile
Rd. Suite B, Cleveland, OH 44122-5914, providing your name, home address, home
telephone including area code, account password, and mobile number. Removing
consent will not affect your current Service.
III. CHANGES TO THIS AGREEMENT.
We may amend the terms of this Agreement upon advance notice to you in the manner
described below or by posting notices of changes on our website.
The parties intend that the limitations on liability, warranty and damage awards
provided for in this Agreement will apply to the fullest extent allowed by law.
Some jurisdictions do not allow the exclusion of certain warranties or the waiver,
limitation or exclusion of liability for punitive, incidental or consequential
damages, or for intentional or willful conduct in some circumstances. To the
extent that applicable law does not permit any of these limitations, they will
not apply to you.
a. Limitation of Liability. WE ARE NOT LIABLE FOR ACTS OR OMISSIONS OF ANOTHER
SERVICE PROVIDER OR ANY THIRD PARTY PROVIDERS OF SERVICES RELATED TO USE OF
THE DEVICE OR SERVICE. FOR INFORMATION PROVIDED THROUGH YOUR DEVICE, LACK OF
PRIVACY OR SECURITY EXPERIENCED WHEN USING THE DEVICE, EQUIPMENT FAILURE OR
MODIFICATION, OR OTHER CAUSES BEYOND OUR REASONABLE CONTROL, INCLUDING WITHOUT
LIMITATION ANY REPRESENTATIONS THAT THE SERVICES WILL BE ERROR-FREE, UNINTERRUPTED,
OR FREE FROM UNAUTHORIZED ACCESS (INCLUDING THIRD PARTY HACKERS OR DENIAL OF
SERVICE ATTACKS). WE ARE NOT LIABLE FOR SERVICE OUTAGES, NOR FOR SERVICE LIMITATIONS
OR INTERRUPTIONS, AS DESCRIBED IN PARAGRAPH 1,C ABOVE. OUR LIABILITY AND THE
LIABILITY OF ANY UNDERLYING CARRIER FOR ANY FAILURE OR MISTAKE SHALL IN NO EVENT
EXCEED OUR SERVICE CHARGES DURING THE AFFECTED PERIOD. ISMART MOBILE, LLC, AND
ANY UNDERLYING CARRIER ARE NOT LIABLE FOR ANY INCIDENTAL, PUNITIVE OR CONSEQUENTIAL
DAMAGES SUCH AS LOST PROFITS. YOU AND WE BOTH WAIVE TO THE FULLEST EXTENT ALLOWED
BY LAW, ANY CLAIMS TO RECOVER INCIDENTAL PUNITIVE AND CONSEQUENTIAL DAMAGES.
WE AND ANY UNDERLYING CARRIER ARE NOT LIABLE FOR (i) ECONOMIC LOSS OR INJURIES
TO PERSONS OR PROPERTY ARISING FROM USE OF THE SERVICE, THE DEVICE OR ANY EQUIPMENT
USED IN CONNECTION WITH THE DEVICE UNLESS CAUSED BY OUR SOLE AND GROSS NEGLIGENCE,
OR (ii) THE INSTALLATION OR REPAIR OF THE DEVICE BY ANY PARTIES WHO ARE NOT
OUR EMPLOYEES. THIS PARAGRAPH SHALL SURVIVE TERMINATION OF THIS AGREEMENT.
b. Indemnification. YOU AGREE TO DEFEND, INDEMNIFY, AND HOLD US, OUR AFFILIATES
AND AGENTS AND ANY OTHER SERVICE PROVIDER, HARMLESS FROM CLAIMS OR DAMAGES RELATING
TO THIS AGREEMENT OR YOUR PROMISES OR STATEMENTS MADE IN IT AND USE OF THE DEVICE
OR SERVICE UNLESS DUE TO OUR SOLE AND GROSS NEGLIGENCE. YOU ALSO AGREE TO PAY
OUR REASONABLE ATTORNEYS' AND EXPERT WITNESS FEES AND COSTS INCURRED IN ENFORCING
THIS AGREEMENT THROUGH APPEAL EXCEPT AS PROVIDED IN PARAGRAPH 5, BELOW. USE
OF YOUR DEVICE WHILE OPERATING A MOTOR VEHICLE OR IN ANOTHER DISTRACTED OR NEGLIGENT
MANNER MAY BE PROHIBITED, OR RESTRICTED BY LAW IN SOME AREAS. IT IS YOUR RESPONSIBILITY
TO CONFORM TO ALL SUCH LAWS OR REGULATIONS AND YOU SHALL INDEMNIFY US FROM CLAIMS
ARISING FROM ANY SUCH UNLAWFUL OR NEGLIGENT USE. THIS PARAGRAPH SHALL SURVIVE
TERMINATION OF THIS AGREEMENT.
c. No Warranties. WE MAKE NO EXPRESS WARRANTY REGARDING THE SERVICE OR ANY SERVICES
PROVIDED BY ANY THIRD PARTIES, AND DISCLAIM ANY IMPLIED WARRANTY, INCLUDING
ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. WE DO NOT
AUTHORIZE ANYONE TO MAKE ANY WARRANTY ON OUR BEHALF AND YOU SHOULD NOT RELY
ON ANY SUCH STATEMENT.
WE ARE NOT THE MANUFACTURER OF THE DEVICE AND ANY STATEMENT REGARDING IT SHOULD
NOT BE INTERPRETED AS A WARRANTY. THIS PARAGRAPH SHALL SURVIVE TERMINATION OF
V. RESOLUTION OF DISPUTES.
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS RIGHTS THAT YOU MAY OTHERWISE
HAVE. IT PROVIDES FOR RESOLUTION OF MOST DISPUTES THROUGH ARBITRATION INSTEAD
OF COURT TRIALS AND CLASS ACTIONS, ARBITRATION IS FINAL AND BINDING AND SUBJECT
TO ONLY VERY LIMITED REVIEW BY A COURT. THIS ARBITRATION CLAUSE SHALL SURVIVE
TERMINATION OF THIS AGREEMENT.
a. Binding Arbitration. It is intended that this provision be interpreted broadly
to encompass all disputes or claims arising out of our relationship. Any dispute
or claim, including those against any of our subsidiary, parent or affiliate
or the Service of any equipment used in connection with the Service (whether
based in contract, tort, statute, fraud, misrepresentation or any other legal
theory) will be resolved by binding arbitration except that (1) you may take
claims to small claims court if they qualify for hearing by such a court, or
(2) you or we may choose to pursue claims in court if the claims relate solely
to the collection of any debts you owe to us.
b. Arbitration Procedures. You must first present any claim or dispute to us
by contacting Customer Service to allow us an opportunity to resolve the dispute.
You may request arbitration if your claim or dispute has not been resolved within
90 days. The arbitration of any dispute or claim shall be conducted in accordance
with the American Arbitration Association ("AAA") under the Wireless
Industry Arbitration Rules ("WIA Rules"), as modified by this Agreement.
The WIA Rules and information about arbitration and fees are available upon
request from the AAA online at www.adr.org. You and we agree that this Agreement
evidences a transaction in interstate commerce and this arbitration provision
will be interpreted and enforced in accordance with the Federal Arbitration
Act and federal arbitration law. Unless you and we agree otherwise, any arbitration
will take place in Cuyahoga County, Ohio. At either party's election, the arbitration
shall be held telephonically. An arbitrator may award any relief or damages
(including injunctive or declaratory relief) that a court could award, except
an arbitrator may not award relief in excess of or contrary to what this Agreement
provides and may not order relief on a consolidated, class wide or representative
basis. In any arbitration applying the WIA Rules applicable to large/complex
cases, the Arbitrators must also apply the Federal Rules of Evidence, and the
losing party may have the award reviewed in accordance with the review procedures
set forth in the WIA Rules. Judgment on any arbitration award may be entered
in any court having proper jurisdiction. If any portion of this arbitration
clause is determined by a court to be inapplicable or invalid, then the remainder
shall still be given full force and effect.
c. Costs of Arbitration. For claims of less than $1,000, you will be obligated
to pay $25 and we will pay all other administrative costs and fees. For claims
over $1,000 but under $75,000, you will be obligated to pay your share of the
arbitration fees, but no more than the equivalent court filing fee for a court
action filed in the Cuyahoga County Court of Common Pleas, located in Ohio.
For arbitrations in excess of $75,000, all administrative fees and expenses
of arbitration will be divided equally between you and us. In all arbitrations,
each party will bear the expense of its own counsel, experts, witnesses and
preparation and presentation of evidence at the arbitration in the Cuyahoga
County Court of Common Pleas.
d. Waiver of Class Actions. By this Agreement, both you and we are waiving certain
rights to litigate disputes in court. You and we both agree that any arbitration
will be conducted on an individual basis and not on a consolidated, class wide
or representative basis. If for any reason this arbitration clause is deemed
inapplicable or invalid, or to the extent this arbitration clause allows for
litigation of disputes in court, you and we both waive, to the fullest extent
allowed by law, any right to pursue any claims on a class or consolidated basis
or in a representative capacity.
e. Limitations Period. Any arbitration or legal action with respect to any and
all claims or causes of action related to or arising out of this Agreement must
be brought within two years after the cause of action arises, or within the
applicable statutory period of time, whichever is shorter. This limitations
period does not apply to any given cause of action when the statutory limitations
period for that cause of action cannot be waived, restricted or otherwise limited
a. Privacy. We are not liable for any lack of privacy, which may be experienced
with regard to the Service. You authorize our monitoring and recording of calls
to us concerning your account or the Service and consent to our use of automatic
dialing equipment to contact you. We have the right to intercept and disclose
any transmission over our facilities in order to protect our rights or property.
b. Assignment. We may assign all or part of this Agreement without such assignment
being considered a change to the Agreement, and without notice to you. We are
then released from all liability. You may not assign this Agreement without
our prior written consent.
c. Notices. We may send you notice by mail or electronic means, in our sole
discretion. Notices to you shall be effective 1) 3 days following the date deposited
in the U.S. Mail or delivered to a nationally recognized courier or delivery
service, postage prepaid and addressed to your address as kept in our files
and/or 2) immediately upon our transmission using an electronic means such as
e-mail or text messaging service. You are responsible for notifying us of any
changes in your mailing or e-mail address. Written notice to us shall be effective
when directed to our Customer Service Department (at the mailing address listed
on our website) and received by us. Oral and electronic notices shall be deemed
effective on the date reflected in our records. Your notice must contain specific
information adequate to identify you and your Service.
d. Entire Agreement. These Terms and Conditions, together with the Sales Information,
represent the entire agreement between you and us, which may only be amended
as described in this Agreement. This Agreement supersedes any inconsistent or
additional representations made to you by any of our representatives, agents
or dealers. If any part of this Agreement is found invalid, the balance of the
Agreement remains enforceable. If, at any time, we do not enforce any right
or remedy available under this Agreement, that failure is not a waiver of our
right to enforce the right or remedy at a later time. Copied, microfiche, scanned
or other duplicate or electronic images of this Agreement are admissible for
e. Governing Laws. This Agreement is subject to applicable federal laws, federal
or state tariffs, if any, and the laws of the state of Ohio. Where a state agency
or the FCC regulates the terms and conditions of our Service, the regulations
are available for your inspection; if there is any inconsistency between this
Agreement and those regulations, this Agreement shall be deemed amended as necessary
to conform to such regulations.